May 18, 2007

Should you really have to leave Alabama to get your sex toys? Or should we celebrate the federal system, where the states are allowed to be different? If you don't like it, why are you living in Alabama? But if you like it, you can enjoy the deep pleasures of living in a distinctive culture that is able to enact a collective expression of its disapproval of sex toys.

87 comments:

The south has a long history of enacting laws that force their citizens to cross into the next county/state to buy liquor etc. Even Utah folks drive west to the Nevada border (Wendover) to gamble. Most of the license plates in the casino parking lot were from Utah the last time I was through there.

It is a product of our Protestant/Catholic heritage that we embrace the power of guilt.

Or, put differently, what the popularly elected representatives of your community say is moral. Which puts a slightly different complexion on the problem, even if it's not really decisive. It just doesn't seem nearly so unreasonable as when you can blame it on some bureaucrat on a power trip.

What we need are the jackboots of the feds jumping in with both feet to ensure that all the pervs have their little toys in every community across the land. Yeppers, that's what the founders were all foursquare about.

As a legal question, its hard to see how restricting the sale (but not possession) of sex toys would be unconstitutional.

As a legal issue, its hard to see how restricting the sale of sex toys advances any state interest at all. Isn't the entire point of our government, even in federalism, that the government has limited powers and there has to be some rational basis for regulation.

What is the basis for prohibiting the sale of sex toys? Could the state ban the sale of wine glasses if it found alcohol consumption morally objectionable?

I am sure that there are people who really object to others using sex toys.

But my experience is that what people really object to are the adult stores-- their effects on nearby property values, the difficulty in preventing teens from visiting, the uncomfortable questions from younger kids when seeing the stores from cars, etc, the advertisements, and so forth.

I'd vote against zoning that would permit one anywhere near us. But I would happily use a mail order firm.

It's a good question, one that I think of when concealed carry of weapons (CCW) laws are mentioned, usually. Right now CCW laws aren't reciprocal from state to state, so undergoing the checks in one state means you're still breaking the law in the other 49. I'm in favor of a little uniformity, I think, but depending on the law involved, of course.

But my experience is that what people really object to are the adult stores-- their effects on nearby property values, the difficulty in preventing teens from visiting, the uncomfortable questions from younger kids when seeing the stores from cars, etc, the advertisements, and so forth.

All of which can be restricted by less draconian measures than completely banning the sale of sex toys. Hint: try and identify a liquor store in South Carolina if you don't know what you are looking for. Unless they have changed that silly law in the last fifteen years. I know they finally got rid of the airline bottles at bars.

Vet 66,It's hard to see how having a handgun hidden in the glove compartment couldbe an advertisement for sexual prowess. However, several southern boys think they'readvertising their sexual prowess by hanging theseon their trucks. Classy yeh?

What we need are the jackboots of the feds jumping in with both feet to ensure that all the pervs have their little toys...

It's a tired point that I've made before, but I can't resist it one last time: Out of everything that has happened in this decade, it's the idea that state government might not have the right to ban the sale of dildos that makes you hear the march of jackboots. It's good to know the militia is watching out for us.

And Freder:

I didn't say that I believe that the law serves a legitimate interest, and in fact I don't believe that. But, if it doesn't violate the constitution, that's for the people of Alabama to decide. Does it violate the constitution?

"All of which can be restricted by less draconian measures than completely banning the sale of sex toys."

I think it is draconian to make it that communities have to allow the sales of things within their community, if they do not want it. YMMV.

"Hint: try and identify a liquor store in South Carolina if you don't know what you are looking for."

The big red dots are not difficult to decipher. Nor is the euphemism "Package Store." And the old standby of asking someone for directions hardly seems like a terrible burden. Again, YMMV.

I think the way SC handles liquor is silly. It is but one of many reasons I don't live in SC. I see no reason to make people who like the way SC is do things differently, though. Let them have their state. I have mine.

Ann, this post is shining little jewel that could be placed in a nice setting and worn from one ear, illustrating for all what it looks like when a seriously intelligent and emotionally generous person examines a question like this. And then on the other side you could dangle a typical “the Christianists are out to get us” Kos-school rampage.

But, if it doesn't violate the constitution, that's for the people of Alabama to decide. Does it violate the constitution?

Whether it violates the constitution is for the Courts to decide. Apparently, the State Supreme Court doesn't believe it violates the constitution. But the Alabama Supreme Court doesn't really know how to read the constitution very well and they are elected.

As for the people of Alabama. Remember, these are people who only got rid of their anti-miscegnation laws within the last ten years (more than thirty years after it was declared unconstitutional) and then by an embarrassingly narrow margin. The initiative passed by something like 60--40%. So in many ways, the good people of Alabama still don't quite understand the rights enumerated in the Federal Constitution.

I think it is draconian to make it that communities have to allow the sales of things within their community, if they do not want it.

I hate to sound like the libertarian here, but why not let the market decide? If people don't want these stores in their communities, then they will obviously go out of business.

My point about liquor stores in SC was that your objections could be addressed by less draconian methods than outright bans. E.g., setback rules and zoning restrictions, advertising and signage restrictions, limiting the number of stores in any one area to prevent the development of "red light" districts, and scrupulous enforcement of minimum age restrictions in the stores.

Yeah, thats another reason that these laws are goofy and counter-productive; the transgression involved seems to be a source of some of the fun to begin with. Driving across Missouri and Oklahoma, you'll be assaulted with the following billboards:

JESUS (really, that's all, just JESUS)

STAMP OUT PORNOGRAPHY

PORNOGRAPHY DESTROYS CHILDREN

DEPRAVED DAVES: MIDWEST'S LARGEST SMUT WAREHOUSE

JESUS

The billboards are a bit of a chicken and egg problem, but I've always found it amusing that the bible belt is the region that most readily supports these massive porn warehouses.

Freder: Alabama Supreme Court doesn't really know how to read the constitution ...the good people of Alabama still don't quite understand the rights enumerated in the Federal Constitution.

I'm sure a little provincialism makes you feel better about yourself, but you could drop the bigotry and address the issue?

The Atlanta-based 11th U.S. Circuit Court of Appeals dealt her the latest setback on Valentine's Day, upholding the ban as constitutional and saying "the state's interest in preserving and promoting public morality provides a rational basis for the challenged statute."

And the article is misleading about "restricting" the sale of sex toys in Texas and Georgia. I have no problems finding them in Dallas.

I'm sure a little provincialism makes you feel better about yourself, but you could drop the bigotry and address the issue?

The 11th Circuit has upheld the ban and the plaintiffs are appealing to the Supreme Court. So until the Supreme Court rejects the appeal or accepts it and rules on it, the constitutionality of the law is uncertain. State Supreme Courts, or even Federal Appeals Courts, or even Federal Appeals Courts do not have the final say on the constitutionality of an issue, the U.S. Supreme Court does.

If the U.S. Supreme Court refuses to hear the case, the decision of the 11th Circuit is only binding in that circuit (which covers Georgia, Alabama and Florida). It would not be binding in a different circuit. A Federal Court in Texas could look at an identical law (or whatever the Texas law is) and overturn it. (The way I read the article, Texas has restrictions on the sale of sex toys, not necessarily an outright ban).

Roost on the moon is correct about Missouri--I drove across the state and was struck by the fact that almost every interstate exit had an "adult emporium," of some type either attached to or next to a gas station. I just tried google to find the dollar value of sex toy sales; no luck. anyone have any idea how much it is?

I hate to sound like the libertarian here, but why not let the market decide? If people don't want these stores in their communities, then they will obviously go out of business.

Or better yet, let's use the libertarians' favourite device -- property rights! Why don't all Alabamans band together to buy up all the land in Alabama -- so it's their property! -- and institute a kind of popularly elected regulatory authority and voluntarily subject themselves and subsequent purchasers of their property to its dictates. You know, like a condo association. Then they can use their common property interest, as manifested in the regulatory authority, to ban sale of sex-toys, the sale of liquor on Sundays, houses that do not conform to neighbourhood aesthetic standards, and the sale of houses that fail to comply with the fire and gas codes!

Just saying "market" isn't enough -- you need to deny people any shared ownership interest in their communities and reduce the sphere of their influence to the four corners of their particular plot of land. And the end result of that -- an increasingly common result, it seems, in today's markets -- is that people say "to heck with this!" and set up gated communities, cohousing communities, or other common interest developments so they can set up regulations to make their communities livable in the way they want. Of course, poor people can't do that, because that takes money, so they're basically stuck with whatever community the courts will allow them to create. But rich people do and can.

I cringe when I hear this logic, though I'll admit its not as bad as telling U.S. critics of U.S. policy, "If you don't like it, go to some other country."

No one should be expected to pick up and move their home to another jurisdiction because they object to oppressive laws imposed on them in their current home. Its financially, emotionally, logistically a huge burden even for a well-heeled professional.

The logic strikes me as a mean-spirited cop out: I don't want to debate the merits of your objection so accept it as is or leave.

Federalism is stupid. Some things need to be done on a national level, some things need to be done on a local level, but nothing needs to be done on a state level--they're an artificial and useless construct. Since the Civil War states have no power to resist the national government; all they do is oppress their inhabitants with another useless layer of bureaucracy and taxation. And of course, stupid laws like this one, a redutio ad absurdum of federalism.

Indiana is not quite as bad but we can't buy beer on Sunday and never before 11am on any other day. My absolute favorite is having to wait for a manager as the 17 year old cashier at the grocery store can't ring up a six pack. Yet I can go to Epcot in Disney and a 19 year old German girl can serve me a Becks at the Biergarten with no problem.

Here's why Joe's plea to dispense with "love it or leave it" questions is so hard to follow--sometimes, the answer (or the question itself) is very revealing, even if it's not really taken literally be either side.

Take, for instance, Smilin' Jack's denunciation of federalism. My response to that is, "We already have one France in the world; why turn the US into another one?"

I agree that the government official was elected by the people. If the people don't like this decision they can vote the government official out of office. Or the people can move out of the state to another state where they can purchase what they like.

Also, they could certainly purchase whatever they want on the web if they have a desire for a specific product.

Majority rules, Joe, majority rules. When the majority of Alabamans want to be porn free, they can be. When that majority changes, then so will the rules.

First off, we are talking about sex toys, not pornography. Secondly, the majority doesn't always rule. If your understanding of our system of government is so poor that you think this is the rule, perhaps you should go back for more edjamikation.

A girl might never leave the house where she might find a partner with whom to produce new Alabamans.

Exactly. I remember reading a widely-read advice column awhile back and a shy, young girl wrote in asking what she should do now that she was of age and really wanted to experience a rich sex life. The proper advice was clearly to encourage her to get out and meet people, develop her social skills, and get over her fear of rejection.

The advice columnists encouraged her to stay inside with a big bucket of lube.

Let's not forget here that the 10th Amendment is quite specific. Also, let's not forget that each state is it's own sovereign country. You don't have to live in any state that has laws that you find not to your liking. I support federalism and it's inherent benefits, but let's look at the perspective of what is being said. You can't get a sex toy or a particular sex toy in Alabama, therefore you have to go to another state to do it. If that's a matter of a great egregious injustice that is done to you, then you don't have it so bad in my opinion. It's not as if the actual toys are unavailable, they just aren't available within your immediate state.

Are we going to hinge a states 10th Amendment status on the fact that you can't buy a sex toy in it therefore something like this is destined to crumble it? How is this going to work? One woman's sex toy availability is another lawyers 10th amendment challenge? Oh dear.

"And yet, Joe, you are expecting Alabamans to 'pick up and leave' if they don't like the presence of what you want to have? Majority rules, Joe... If you don't like their rules, move to where a majority feels like you do. "

I didn't opine on whether the sex toy ban is consitutional or about the merits of a federal system or even about whether I think sex toys should be banned. My objection is to the "love it or leave it" response.

If I voice my criticism of the sex toy ban, I can respect arguments like "if you don't like it, then petition your legislator" or "if you don't like it, then organize and try to persuade other citizens to support repealing the ban." But telling me to pack up and leave if I don't like the current laws is about as useful a response as telling me to f**k off.

Hoosier Daddy said...My absolute favorite is having to wait for a manager as the 17 year old cashier at the grocery store can't ring up a six pack. Yet I can go to Epcot in Disney and a 19 year old German girl can serve me a Becks at the Biergarten with no problem.

Yeah, so? Most states have a "must be 18 to serve" law. You can get served a Becks by a 19-year-old Hoosier girl, if you like.

Freder- Majority does rule. Where doesn't it? the majority of the voters will elect state reps and senators, governors and, in most states, the judges. Where does the minority have a say?

Joe, maybe I misunderstood your post. I took you to say that you felt that because you didn't like a particular law you were forced to pick up and leave, and wanted to change the law instead.

I responded that if you were in the minority you had no right to impose your wants on the majority, forcing them to do what you didn't want to, if they didn't like your rules? Did I misunderstand your point?

Talk of changing the law is all well and good, but how many have moved to change to a better school district, rather than just change the school?

Actually the majority often doesn't rule. That is a feature of a republic and the reality of politics. In this specific case, I would wager that the majority doesn't care one way or the other. Because of that, an outspoken minority gets a law passed that upsets another minority.

Actually, in the U.S. Senate it doesn't because there are two senators for each state regardless of population so each citizen of Wyoming has a much greater say in the senate than each citizen of California.

And even though judges are elected, their decisions are not supposed to be based on the popular will, but on the law. That is why electing (or at least subjecting them to reelection) judges is a profoundly bad idea (and why they are not elected at the Federal level). Even juries are not supposed to decide cases based on whether they "believe" the accused deserves to be punished or the plaintiff deserves to win but on an objective standard of whether the case has been proven.

Even juries are not supposed to decide cases based on whether they "believe" the accused deserves to be punished or the plaintiff deserves to win but on an objective standard of whether the case has been proven.

It's also worth mentioning that juries typically are required to go well beyond the majority-rules principle. Traditionally, they have to be unanimous.

Re: law and juries, whether it's a belief in just dessert or whatever, the phenomenon of jury nullification has a long history in our law. That's not majoritarian either, though, since it's just 6 or 12 or however many randomly selected people deciding this way or that.

Joe, by your statement that a "majority don't care" tells me thatthey are happy with what the majority has done, otherwise they would exercise their majority and overturn the law.

Freder- Each of the 100 Senators was elected by the majority of the voters in their respective states. Although the two Senators from Wyoming represent fewer voters than the two Senators from California, each represents a majority of their respective state, and it takes at least a majority vote for a bill to pass either the House or the Senate.

I'll be the first to admit the majority isn't always right- we have enough history in this country of reversals in majority opinion to prove that- but the majority will rule.

Smilin Jack wrote about the idiocy of Federalism and states: "all they do is oppress their inhabitants with another useless layer of bureaucracy and taxation."

Really? Nevada legalized prostitution and has tried to legalize marijuana. In Alaska it was at one time legal to have 4 ounces of marijuana in your house for personal consumption. Some states recognize marriage between the same sex, some have constitutionally banned it. Seems like ther might be something in one of those issues that you agree with.

And I also disagree with your contention that states are useless constructs. Jack is different the Evan. One is a good sour mash whiskey, the other a Kentucky bourbon. Other relevant distinctions apply as well.

"What we really need here is some civil disobedience to challenge this unjust law."

No Alabama resident is going to go to jail to vindicate his or her right to buy sex toys. Even if some zealot stands forth to make the sacrificial gesture, what self-respecting cops would brave the ridicule they'd get for making this arrest?

America was set up with the notion that the Feds would comprise the national structure, right to regulate interstate commerce and other matters, and some very basic rights - the rest being left to the States.Back then, 4 basic reasons were given: (1)The impossibility of governing effectively with limited interaction with the people, and the technology at the time blocking info and decision forming/notification for weeks;(2) Power concentrated in a distant capital like in many European countries made the courtiers in the Capital arrogant, out of touch, unaccountable to the citizenry; (3) The states were incubators and testers of ideas. Some ideas might work locally, others might fail, some might work in one of tens of thousands of localities so well that others would embrace the law or custom.(4)The individual was to be free to think and innovate to the maximum extent that was not in conflict with state, Fed, local government.

All 4 concepts were discussed in the Federalist papers. America's great trouble since then is the courts, the Feds find power intoxicating and try to grab as much as they can for themselves - risking DC becoming Versailles and judges and their silken-tongued syncophants the Sanhedrin.

States can overreach, too. The "Black Codes" and gun grabs in contravention to the 1st, 2nd, 4th, 5th Amendments being notable.

But other matters, like gay marriage, wet vs. dry, drug laws, porn bans, dildo bans logically should be state matters.(ignoring the non-existent "privacy right" since it can be used by "fans" to justify anything )

Joe, by your statement that a "majority don't care" tells me thatthey are happy with what the majority has done, otherwise they would exercise their majority and overturn the law.

Exactly what part of "don't care" do you not understand? To put it more simply, the majority of residents of Alabama very like don't give a rat's ass whether the law exists or not. Because they are so completely apathetic, they make no effort to get rid of the law. EVERY state has stupid dumb-ass laws that fall in this category.

I'm also curious if you have any clue how laws are actually passed in this country. Simply because a majority of politicians in any given body vote for or against something doesn't mean they represent the majority of voters. This is especially true with edge cases like this where most people are indifferent, but you can easily get a majority in the legislature since they will be catering to a specific constituency. Other politicians may actually be against the law, but vote with you in exchange for you vote on some other marginal issue.

A small mainority (your words) has convinced the legislature and the judiciary that this is what the law should be. A majority could give a rat's ass (Again your words), and another minority wants to overturn the law.

Here's how I read it- A majority doesn't care if these toys are legal or not; a vocal minority wants them banned and a smaller minority wants them legalized.

The majority rules, and until you can convince a larger minority to your point of view, you are stuck with what the majority of those who seem to have an opinion have decided.

What makes you question if I know how law is made? You seem to be the one lacking in that department. If you live in Alambama you ought to know you are in the buckle of the Bible belt. The majority you claim doesn't care about these laws will start to when the legislature starts wanting to allow blowup dolls on every street corner.

If you want to live in Vegas, move to Vegas. Don't move to Christian Corners and complain about the excessive morality.

According to the State of Florida, there is reciprocity with 30 states, to a greater or lesser extent, depending on the laws of those states. See: Concealed Carry Reciprocity.

Of course, my CCW permit from FL doesn't cut any ice in NY or DC, in Chicago or San Francisco. But that's subject to change in the near future, I suspect.

I'm all for federalism. Let some states ban abortion totally while others have it on demand, up to the day of delivery. Let some states ban the sale of alcohol while others have liquor stores open 24/7. As difficult or expensive as moving might be, it's still an option available to every citizen. And no, life isn't fair, so it may cost some more than others.

"A person should have the right to make their own decision to explore their sexual boundaries outside what some government official says is moral."

This quote is amazingly open-ended. Incest is illegal. Pedophilia is illegal. Sex with animals is illegal. All of those things are illegal whether the person (or animal) can be demonstrated to have consented or not.

Imagine if that quote were in a Supreme Court opinion. The country would NEVER accept it. It would allow a host of things that the majority would rightly find offensive. So excuse me if I say that Alabama can darn well do what it wants, and band the heck out of sex toys.

This quote is amazingly open-ended. Incest is illegal. Pedophilia is illegal. Sex with animals is illegal. All of those things are illegal whether the person (or animal) can be demonstrated to have consented or not.

Well of course all these things are meant to protect the non-consenting party or the party incapable of giving consent. So you are right, the original statement was overbroad. And most incest statutes just ban marriage between close relatives, not consensual sex itself.

The ban on sex toys can hardly be said to further efforts to protect third parties--which would be a legitimate state interest.

This quote is amazingly open-ended. Incest is illegal. Pedophilia is illegal. Sex with animals is illegal.

And bringing up incest and bestiality in a discussion of sexual practices in Alabama is very risky indeed. Some of us elitist leftists might be sorely tempted to bring up a whole bunch of stereotypes about the predilections of southerners.

Freder - Some of us elitist leftists might be sorely tempted to bring up a whole bunch of stereotypes about the predilections of southerners

Fen - Don't flatter yourself. Your bigotry has nothing to do with being an "elite"

Freder is just "clown prince" bystander to the real Lefty Ruling elites - who have been at this for many generations - as Bolsheviks backed by banker cousins who were international industry owners and financiers, or as indolent WASP bond coupon cutters that believed their burden was to "uplift".

Freder is just a stupid tool of the real moneyed Left who make the actual calls.

Separate question:

At a reduction in the gene pool variability rate of 7.5% per generation, how long will it take a town which has been bypassed by the Interstate to breed a country-western singer? A Freder? Or an Al Sharpton?

Answer?

Prominent ountry singers are true talent and they are rare. In and out of narrow family tree "hollers".

An Al Sharpton must have the inbred race-baiting skills and ability to demogogue that takes hard work to cultivate. A "dark secret" is that African-American sexual opportunism doesn't stop at the family door in a way that stronger white, Asian, and hispanic taboos do.

A "Freder" is just the intellectual runt of any restricted gene pool Lefty family. It's just the logical product of Lefties that sloppily choose not to "save" 3rd World packs of kids through adoption rather than create their own "high-consuming evil white offspring".Freders are mistakes.Fortunately more and more Lefties have gone childless or homosexual, removing themselves from the gene pool, so all their legacy of thoughts and beliefs dies with them....

Fen: "And the article is misleading about "restricting" the sale of sex toys in Texas and Georgia. I have no problems finding them in Dallas."

Texas law allows for the sale of sex toys as long as they're considered "novelties." If you're a fellow Dallasite, you may recall the story of the lady over in Burleson who got in trouble back in '04 for selling the toys at a Tupperware party-like gathering. (I'm sure the Tupperware folks were thrilled with that comparison.)

Oppressive? Stupid, maybe. Silly. No one unable to buy their toy is put to any significant harm or even insignificant harm.

Just because I can't have anything I want *effortlessly* doesn't make me oppressed.

What burden? Driving over the border? Having to do with home-made? OH MY DOG but that is an oppressive way to live. The horror of it! We obviously have a constitutional right to an "Adult" store on every fourth corner so that people are not oppressed and sexually stunted by their inability to make their own decision to explore their sexuality... because they can't do that without... um... well they can't *do* that exploration thing... well, it's just not...

How does anyone actually get off without dropping some cash at the local "Adult" store? It's like they outlawed *sex!* Don't move to Alabama, you'll never have an orgasm again!

Ok. So you have lottery tickets and sex toys. Isn't the central issue here that you can OWN something in Alabama but you can't buy it IN Alabama.

I'm trying to figure out a list of things I can own here in New York that I can't buy in New York by law.

it is a difficult list to make because here things that are banned from purchase or sale are generally banned items period but then again I find it hard to make a list that isn't chock full of morality or exploitive items to consider...

So as Suzy says, you have to go across the boarder...hmmmmm now don't we have an interstate commerce question? well don't we?

Oppressive? Stupid, maybe. Silly. No one unable to buy their toy is put to any significant harm or even insignificant harm.

It is glaringly obvious that the law harms both legitimate businesses (which lose revenue to out-of-state sellers and run the risk of criminal prosecution if they sell something the police decide is a sex toy) and anyone prosecuted under the law (who face fines and imprisonment), so I'll let your embarrassing claim that nobody's harmed pass without further comment.

But even if it was true that no harm's being done it wouldn't matter, because harm has nothing to do with oppression. Something can be harmful without being oppressive or oppressive without being harmful. If San Francisco banned the sale of any Christian books, music, or DVDs, the fact that Christians can just shop at Amazon wouldn't change the fact that San Francisco was oppressing Christians.